Moraes authorizes seizure of Americanas’ emails, except messages with lawyers – 04/03/2023 – Market

Minister Alexandre de Moraes, of the STF (Supreme Federal Court), authorized this Monday (3) the search and seizure of documents and emails from the board of Lojas Americanas for the production of expertise to investigate whether the company committed accounting fraud.

Moraes determined, however, that electronic messages, documents and data transmitted between the company’s lawyers and its executives cannot be used in the investigation.

In practice, Moraes’ decision relaxes what he had decided on February 16, by suspending a first instance decision that determined the search and seizure.

“The inviolability of communications and data (…) aims to protect the practice of law as an instrument for the realization of individual constitutional rights and guarantees, with the aim of protecting the relationship between lawyers and their representatives”, says the minister on Monday’s decision.

“That is, all this data is protected by professional secrecy, such as emails originating from or destined for lawyers, in exchanges of messages with the Americanas Group, with its directors, members of the Board of Directors, the Audit Committee, internal lawyers and employees of the company’s accounting and finance area”.

According to Alexandre de Moraes, “other communications and data seized, which do not involve the practice of law, are not supported (…), as there will be no protection of professional secrecy”.

In February, the minister had accepted the retailer’s argument about a possible breach of confidentiality between client and lawyers, which could have an impact on the various actions the company became the target of after the announcement of the discovery of “accounting inconsistencies” that led to the request for judicial recovery.

The retailer appealed to the STF after Judge Andréa Galhardo Palma, of the 2nd Regional Court of Business Competence and Conflicts Related to Arbitration in São Paulo, determined that Microsoft should deliver to Bradesco the copies of email boxes of Americanas executives.

Americanas’ defense understood that the measure could violate the secrecy of communication between lawyers and clients, as provided for in ADI (Direct Action of Unconstitutionality) 1,127 and, based on this argument, appealed to the STF.

Bradesco then submitted a request to the Minister for reconsideration of the order that prevented the search and seizure of the emails. According to the bank, the measure is necessary “to uncover once and for all the vile opportunism that marks the requests” from Americanas in the process.

Febraban (Brazilian Federation of Banks) also expressed its support for Bradesco.

According to the petition sent by the entity to the STF, the precautionary measure filed by Bradesco “at no time aimed at violating the professional secrecy of the lawyers of the Americanas group, nor does it aim to promote a generalized search of any and all communication or even intend to execute, indiscriminately, a probe into the company’s correspondence.”

Febraban said that, without the search and seizure, it becomes “impossible to ascertain the facts, hold accountable the administrators and controllers who, effectively, may have contributed to the alleged accounting fraud and reach its assets.”

Moraes’ new decision was taken after these requests, with the authorization of the search and seizure, but with restrictions regarding the lawyers’ emails.

ARM WRESTLING WITH THE BANKS

The retailer’s crisis was triggered on January 11, when the then president of Americanas, Sergio Rial, resigned from his position and suggested that the company had been hiding debts equivalent to R$ 20 billion in its balance sheet, due to “accounting inconsistencies” .

The announcement of the accounting scandal started a legal battle between the retailer and its biggest creditors, the banks, which culminated in a request for judicial recovery in less than ten days.

Debts with financial institutions amount to R$19.5 billion, with Bradesco the largest creditor (R$5.1 billion), followed by Santander (R$3.6 billion), BTG (R$3.5 billion) , Itaú Unibanco (R$2.7 billion) and Safra (R$2.5 billion). Public banks Banco do Brasil (R$ 1.6 billion) and Caixa (R$ 500 million) are also on the list.

The big creditors insist that the company’s main shareholders inject a relevant amount to account for the fiscal gap of R$ 20 billion in the balance sheets in recent years, related to risk-drawn operations, involving financing from banks to suppliers.

With declared debts of BRL 43 billion upon filing the request for judicial recovery, on January 19, Americanas ranks as the fourth largest judicial recovery in Brazilian history, only behind Odebrecht (R$ 80 billion), Oi (R$ 65 billion) and Samarco (R$55 billion).